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land in Templeton, with a dwelling-house thereon, to secure the payment of a promissory note of that date for the sum of $450, upon which there was still due the sum of about $270 ; that after such mortgage was made, Davenport, having purchased another lot of land in Templeton, undertook to remove the house to such lot; but that after having removed it from sixty to eighty rods from its former site, he took it all to pieces and carried the materials to the subsequently purchased lot, and there erected a house of the same dimensions as the former house ; that in the construction of the new house, he made use of the materials of the old house, so far as they would answer the purpose, together with new materials, which were furnished by himself; that the removal of the old house and the erection of the new one, were known to the defendant; but there was no evidence that he knew of the mortgage, other than what resulted from the record thereof.

It further appeared, that when the new house was completed, Davenport, for a valuable consideration, conveyed the lot on which it stood, together with the house, to the defendant, who occupied the same from that time until after the commencement of this action, when he sold the same to a third person.

A nonsuit or a default was to be entered, as the court should determine.

Washburn and Hartshorn, for the plaintiff.
C. Allen, for the defendant.

WILDE, J., drew up the opinion of the court. This action is submitted on an agreed statement of facts, by which it appears, that one Davenport, being the owner of a lot of land with a dwelling-housel zoeta thereon, mortgaged the same to the plaintiff'; that afterwards he took down the house, and with the materials partly, and partly with new materials, built a new house on another lot of his at some distance ; and that after the new house was completed, he, for a valuable consideration, sold the last-mentioned lot and house to the defendant.

There are two counts in the declaration : one, for the conversion of the newly erected house ; and the other, for the conversion of the materials with which it was built, belonging to the old house.

The plaintiff's counsel insist, that the old house was the property of | the plaintiff, and that Davenport had no right to take it down, and could not therefore acquire any property in the materials by such a wrongful act; that the new house, being built with the materials from the old house in part, became the property of the plaintiff, although new materials were added, by right of accession; and that Davenport, having no property in the house, as against the plaintiff, could convey no title to it to the defendant.

That Davenport is responsible for taking down and removing the old house, cannot admit of a doubt; but it does not follow, that the property in the new house vested in the plaintiff.

The rules of law, by which the right of property may be acquired by accession or adjunction, were principally derived from the civil law,

but have been long sanctioned by the courts of England and of this country as established principles of law.

The general rule is, that the owner of property, whether the property be movable or immovable, has the right to that which is united to it by accession or adjunction. But by the law of England as well as by the civil law, a trespasser, who wilfully takes the property of another, can acquire no right in it on the principle of accession, but the owner may

it be changed into a different species and be incapable of being restored to its former state ; and even then the trespasser, by the civil law, could acquire no right by the accession, unless the materials had been taken away in ignorance of their being the property of another. 2 Kent's Com. 362; Betts v. Lee, 5 Johns. R. 348. But there are exceptions to the general rule.

It is laid down by Molloy as a settled principle of law, that if a man cuts down the trees of another, or takes timber or plank prepared for the erecting or repairing of a dwelling-house, nay, though some of them are for shipping, and builds a ship, the property follows not the owners but the builders. Mol. de Jure Mar. lib. 2, c. 1, $ 7. . Another similar exception is laid down by Chancellor Kent in his

Commentaries, which is directly in point in the present case. If, he says, A. builds a house on his own land with the materials of another, the property in the land vests the property in the building by right of accession, and the owner of the land would only be obliged to answer to the owner of the materials for the value of them. 2 Kent's Com. 360, 361. This principle is fully sustained by the authorities. In Bro. tit. Property, pl. 23, it is said, that if timber be taken and made into a house, it cannot be reclaimed by the owner; for the nature of it is changed, and it has become a part of the freehold. In Moore, 20, it! was held, that if a man takes trees of another and makes them into boards, still the owner may retake them, but that if a house be made with the timber it is otherwise.

In Popham, 38, this principle is further extended. The plaintiff in that case had mixed bis own hay with bay of the defendant on his land, and the defendant took away the hay thus intermixed; and it was held, that he had a right so to do. But it was also held, that if the plaintiff had taken the defendant's hay and carried it to his house and there intermixed it with his own hay, the defendant could not take back his hay, but would be put to his action against the plaintiff, for taking his hay. If there be any doubt of the doctrine laid down in this case, it does not affect the present case. The doctrine laid down in the fornier cases is fully supported by the Year-Books, 5 Hen. 7, 16; and I am not aware of any modern decision or authority, in which this old doctrine of the English law has been controverted.

The case of Russell v. Richards, 1 Fairfield, 429, cited by the plaintiff's counsel, was decided on the ground, that the building in contro

freehold. In the present case it cannot be questioned, that the newly erected dwelling-house was a part of the freehold, and was the property of Davenport. The materials used in its construction ceased to be personal property, and the owner's property in them was divested as effectually as though they had been destroyed. It is clear, therefore, that the plaintiff could not maintain an action even against Davenport, for the conversion of the new house. And it is equally clear, that he cannot maintain the present action for the conversion of the materials taken from the old house. The taking down that house and using the materials in the construction of the new building, was the tortious act of Davenport, for which he alone is responsible.

Plaintiff nonsuit.

RICHARDSON v. COPELAND.
SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1856.

[Reported 6 Gray, 536.] Action of tort for the conversion of a steam-engine and boiler, which were manufactured and set up by John Putnam and others, under a contract with Josiah Richardson, upon his land in Leominster, in a building erected for the purpose of receiving them, and were used to run the machinery in the adjoining shop of said Richardson. The hoiler was set into the brick-work in such a manner that it could not be remover? without taking down the brick-work; and the engine was placed upon a granite block, and fastened by a bolt or pin. After the work was finished and the engine was in operation, said Putnam and others gave a bill of sale of the engine and boiler to Richardson; and at the same time received back a mortgage thereof, which was recorded as a mortgage of personal property; and afterwards, upon breach of the condition thereof, due notice was given of intention to foreclose the same as such a mortgage. Richardson subsequently became insolvent, and said real estate was sold by his assignees by order of the commissioner, on the petition of mortgagees thereof, (some of whose mortgages were made before the erection of the engine and boiler, and some since,) to one Harlow, who had full knowledge of the mortgage to Putnam and others, and of the proceedings thereon, and who afterwards sold the engine and boiler to the defendant, to be taken away, and the defendant removed them. The plaintiff afterwards purchased all the rights of Putnam and others, and gave notice thereof to the defendant, and demanded the property of him.

The plaintiff also offered to prove that, by the general usage and custom of trade between manufacturers and vendees of such property, it was regarded and treated in all respects as personal property. But the Court of Common Pleas held the evidence incompetent. The parties submitted the foregoing case to this court, with an agree

1 See Central Branch R. R. Co. v. Fritz, 20 Kans. 430.

ment that if, upon the facts stated, the action could be maintained, or if the evidence offered was competent, the case should stand for trial; otherwise, judgment for the defendant.

N. Wood, for the plaintiff. J. W. Fletcher and C. Devens, Jr., for the defendant. Shaw, C. J. This is an action of tort, in the nature of trover, to recover the value of a steam-engine and boiler. To maintain this action, the plaintiff must prove property in himself, and a conversion by the defendant.

Upon the facts stated, the court are of opinion that the engine and boiler, having been erected on the premises of Josiah Richardson, of which he was then the owner in fee, subject to several mortgages, became annexed to the freehold. Winslow v. Merchants' Ins. Co., 4 Met. 306. This real estate comprised a manufactory occupied and carried on by said Richardson, and the engine was erected to furnish power for such manufactory. The steam-boiler was permanently set in brick-work, and could not be removed without taking down the brickwork, and the engine was permanently annexed to the buildings. This permanent annexation of the engine and boiler to the freehold, de facto, rendered them part of the realty; and his agreement with the builders to give them a mortgage thereon as personal property, as against all those who took title to the estate in fee, was inoperative and void. No title to these articles passed as personal property to the mortgagees which they could assert against a third party. The engine and boiler thus remained part of the realty till Josiah Richardson become insolvent, and the estate passed to his assignees, subject to the right of the mortgagees of the real estate ; it was rightly sold by order of the commissioner, on their petition, and a good title passed to Harlow, the purchaser. He afterwards severed them, and thus reconverted them into personal property, as he lawfully might, and sold them to the defendant, who thereby took a good title.

The evidence of usage was rightly rejected; it could not be received to control the operation of law, arising from the actual annexation of the engine and boiler to the freehold. If it be said, it might have tended to show the intent of the parties ; the answer is, that the intent of the parties was manifest enough from the agreement of the parties and the mortgage. But the difficulty was, (by mistake of the law, no doubt,) that this intention was one which the law could not carry into effect, that of hypothecating a portion of the realty, as personal property, without severance.

The fact, that Harlow had full knowledge of the history of the mortgage, did not impair his right to be a purchaser.

It is to be observed, as a fact important to the present case, that the engine and boiler were purchased and set up in the factory by one who himself owned the freehold. Had they been so bought and placed by a tenant on leased premises, the case might have presented a different question.

Judgment for the defendant.' I See Dudley v. Foote, 63 N. H. 57.

133

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